May I first thank the Secretary of the CMAC Executive Director’s, Ms Ncamsile Magagula who partnered with me in reading the cases, extracting the reasons for the awards and re-typing the relevant sections of the awards into this document. May I also thank Ms. Lydia Madolo for closing the gap so well when Ncamie became indisposed.

This compilation is obviously not my work but the product of hardworking CMAC Executive Directors Arbitrators called Senior Commissioners and Commissioners. These include, but are not limited to, the following:

Appreciation also goes to the support staff of CMAC between the years 2001 and 2012.

This is a product of the individuals mentioned above.

Introduction

This is a compilation of reasons for Arbitration Awards. I have for lack of better phraseology decided to call the compilation CMAC Case Law.

This is obviously work in progress which will be refined overtime subject to the availability of resources for further editing by local publishers.

The author welcomed constructive feedback.

Purpose

The purpose for this compilation is to make case law available to the man in the street and to provide a basis for academic critique of the reasons for CMAC Awards to enable improvements in CMAC legal reasoning.

Page 3 - “At common law, a party that seeks to rescind a default judgment must establish ‘sufficient cause’. Judicial decisions abound which hold that the phrases ‘sufficient cause and good cause mean one and the same thing. In this regard, see the case of Harris v ABSA Ltd T/A Volskas 2006 (4) SA 527

[10] – “Whether or not ‘sufficient cause’/ ‘good cause has been shown to exist, depends upon whether: (a) the applicant has presented a reasonable and acceptable explanation for his or her default, (b) the applicant has shown the existence of a bona fide defense that he is one that has some prospect or probability of success” (Harris Supra Page 529, Chetty v Law Society Transvaal 764-765 Paragraph A-D)

The test whether sufficient cause or good cause has been shown by a party seeking relief is dual in nature, it is conjunctive and disjunctive. An acceptable explanation of default must co-exist with the evidence of reasonable prospects of success on the merits”

In the decided case of Creative Car Sound and Another vs Auto Mobile Radio Dealers Association PTY LTD 2007 4 AT 546 at page 555 paragraphs 44-46, the Court held that

“…the applicants have to show that their application has been made bona fide. They must also demonstrate that they have a substantial and bona fide defense to the respondent’s claim which has some prospects of success”

[46] In essence, the applicants are required to demonstrate reasonable prospects of success on the merits. This in my view means that the grounds of the defense must be set forth with sufficient particularity and detail to enable the court to conclude that there is a bona fide case and that the application is not being brought for the purpose of delay”

[31] “In establishing the second requirement of just cause i.e. bona fide case that has some prospects of success, the applicant must set out the allegations of fact that would satisfy the Commission that his claims are not spurious but are genuine”

[8] Due to the severity of Section 81 (7) of the Industrial Relations Act 2000 (as amended), it is incumbent on the Commissioner to scrupulously ensure that pro proper service has been effected and that all affected parties have been properly notified of: the date, time, and venue of the conciliation meeting; the consequences should the party fail to attend without reasonable exercise. See DONG SHENG PTY LTD T/A NEW YORK CITY STORE V KHULIZONKE DLAMINI AND OTHERS IC 181/07.

[9] Authority exists for the proposition that the first enquiry is whether the Applicant was properly notified. If the question is answered in the affirmative, the inquiry proceeds to ascertain as to why then did he fail to attend. See Northern Training Trust v Maake and Others (2006) 27 ILJ 838 (LC).

4. CMAC 038/10 ALFRED DLAMINI V SHOPRITE CHECKERS/OK BAZZARS

DEFAULT

[5.8] “In a host of Ex parte trials, the court has consistently held that by its default, the Respondent has failed to discharge the statutory onus resting on it in terms of Section 42 of the Employment Act 1980 and consequently found in favour of the Applicants.”

(PAGE 57) The Position in the law (Grogan J. Workplace Law 8th Edition 2004: 157) is that a worker dismissed if it is proved that he or she has committed an act of misconduct. In order for this to be proved, the following must be established

a. A workplace rule must be in place

b. The Employee must be aware of the rule

c. The workplace rule must be contravened

d. The rule must be reasonable

e. The rule must be consistently applied

f. The dismissal must be an appropriate sanction in light of the breach of the said rule.

(PAGE 63) It is trite that the law requires that an employer ought to issue a written warning, only after proper enquiry during which the accused worker should be permitted to defend himself by stating their case, or calling witnessed (Grogan J Supra page 99)

According to the case of Trent vs Mawer and Delport (PTY) LTD (1996) 9 BLR 1192 (IC), the employee should also be permitted to be represented by a fellow employee or union official at such a hearing.

The employee, by signing, does not necessarily admit guilt, but merely acknowledges receipt of the warnings (See Grogan J. Supra page 99).

(PAGE 65) In the case of SESMAWU vs Tracar Divivion for SWAKI Investment Corporation 211/99:5 (IC), it was held that the action for the respondent in instituting new charges against the applicants whilst the initial charges had still not been determined was contrary to the basic cardinals of natural justice. This was because the applicants were being tried for the same facts in installments, and in different unconcluded proceedings. The learned judge in that case expressed his chagrin at the conduct and stated that the applicant would suffer serious prejudice “if the respondent is allowed to willy-nilly abuse its prerogative without regard to the principles of fair play and reasonableness.”

It is clearly stated by F. Jaarsveld and S. Van Eck, Principles of Labour law, 3rd Edition that in order for a disciplinary enquiry to be in keeping with procedural fairness, the decision of the hearing must be made known to the employee.

(PAGE 66) It is trite law that a presiding officer must be unbiased, and must consider all pertinent facts relating to the charge in the judgment that he makes (seeF. Jaarsveld and S. Van Eck, Principles of Labour law, 3rd Edition page and also STAWU&PEP Stores 2004 (ILJ 632 (CCMA and Telkon SA vs CCMA (2002)ilj (lc)

It has become standard labour practice that employees ought to be afforded the opportunity to advance evidence and arguments in mitigation of the sanction and also to allow the employer to advance aggravating factors if need be (See A. Pons & Deale “Labour Relations Handbook” (2000) Section 2 page 32)

(PAGE 8) Andre Van Niekerk in his book“Unfair Dismissal”, 2nd Edition, page 21, states that: “In most instances, a constructive dismissal is triggered by a resignation. This is not the only form of termination of the employment by an employee; it would seem that an employee may simply abscond from employment and would not be precluded from claiming a dismissal”

In the matter between Swaziland Federation of Trade Unions (SFTU) vs The President of the Industrial Court and the Minister of Enterprise and Employment 11/97 (ICA), the learned Judges of appeal quoted with approval the following passage in Baxter, Page 540, wherein Lord Wright states the policy of the courts in 1940 as follows: “if the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of natural justice. The decision must be declared a non-decision”. I thus find that on a balance of preponderance, the Respondent flouted the principles of natural justice, particularly the audi alteram partem rule.

P11 “Consultation on the other hand, involves seeking information or advice on, or a reaction to, a proposed cause of action. It envisages involving the consulted party, an opportunity to express its opinion and make representations, with a view to taking such opinion into account. It certainly does not mean merely affording an opportunity to comment about a decision already made and which is in the process of being implemented.”

‘An opportunity to express its opinion and make representations, with a view to taking such opinion or representations into account. It certainly does not mean affording an opportunity to comment about a decision already made and which is in the process of being implemented.”

“Under the common law, an employer is not permitted unilaterally to amend the terms of a service contract with an employee. If an employer changes an employee’s terms and conditions of service unilaterally, the employee has the election either to resile from the contract or to sue for damages in terms of the contract. The prohibition on variation includes the lowering of the status of the employees and or change in the nature of the work they are required to perform...Most unilateral variations of terms and conditions of employment can be attacked as breaches of contract”

In Riverview Manor (PTY) Ltd vs Commissioner for Conciliation Mediation and Arbitration and Others (2003) 24 ILJ 2196, Pillay J [states that]: “Apart from the absence of any forewarning that his position was in jeopardy or any consultation about it, it was common cause that the employee’s salary was immutable. That was the principal issue that the employee found intolerable and caused him to resign. Having identified the main problem to be the book debts and having found a solution therefore, the employer’s recalcitrance about consulting about remuneration was grossly unfair and inconsiderate”.

14. SMAWU vs SPAR CMAC NHO 185/07 (Khumalo Arb)

ADMISSIBILITY OF EVIDENCE FROM CONCILIATION PROCEEDINGS

P5 “I unequivocally and categorically state that conciliation proceedings are..off the record proceedings and therefore [inadmissible)

P7 “In Usuthu Pulp Company vs Jacob Seyama and 4 Others ICA 1/04 the learned Eberson AJA referred to South African Law case when examining the principle of waiver in the labour contest. The following cases were referred to with approval:

UPMW vs Strasraad Van Pretoria 1992 ILJ 1563 (NH)

North Eastern District Assn (PTY) Ltd vs Surkhev Ltd 1932 WLD 18 and

NEHAWU vs University of Cape Town 2003 (2) BCCR 154 (KH)

In UPMW vs Strasraad Van Pretoria 1992 ILJ 1563 (NH) De Kok J at 1567-1568 remarked that “Delay is not by itself a waiver. Delay is an element in determining whether the conduct of the innocent party was such that a reasonable person would conclude that he has maimed his accrued right to cancel. A mental reservation does not avail…It is a general principle of law that a party to a contract including a ontract of employment to whom a right to cancel has accrued by virtue of the other party;s breach, must elect whether or not he will avail himself of it and that election must be made within a reasonable time or else the victim loses the right to cancel…Fairnes however dictates that that disciplinary steps must be taken promptly. Both the staff regulations and recognition agreement echo the need for prompt action as all time limits must be adhered to strictly…”

Kranse J in North Eastern District Assn (PTY) Ltd vs Surkhev Ltd 1932 WLD 18commented that “it is not by mere delay that a man loses his rights, even if he is aware of the fact that another has infringed his rights. Delay or ‘standing by’ as it is called, may be taken into consideration by the court in arriving at the conclusion as to whether or not the man did or did not lose his right”

Ngcobo JA stated the following in NEHAWU vs University of Cape Town 2003 (2) BCCR 154 (KH)- “By their very nature, labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly.

The Court dismissed a preliminary point which was that the respondent was time barred from instituting a disciplinary inquiry against the Applicants because the Bank had not done so within 30 days as provided in the disciplinary code and procedure.

18. James Board v YKK Southern Africa and Another IC 386/07

VENUE FOR DISCIPLINARY HEARING

The Court held that inasmuch as an employer has a right to decide on the venue for holding a disciplinary inquiry, it must strike a balance between that right and the employees right to a fair hearing

19. SMAWU vs SPINTEX CMAC SWMZ 560/09 (Manzini K. Arb)

NO WORK NO PAY

P8-10 “The position in law is clear. The workers did not abandon their duties voluntarily and therefore the ‘no work no pay rule’ is not applicable herein. (see Grogan Workplace law 9th Edition at p 61). In fact the same author at page 60 expressly states that it is the employer’s duty, under the contract of employment, to receive the employee into service. It is stated therein that service is a prerequisite for remuneration under the employment contract; and if the employer refuses to accept an employee’s tender of service, it commits a serious breach of the employment contract…the duty on the part of the employer to pay the worker, and the commensurate right to remuneration on the part of the worker, does not arise from actual performance of work but from the tendering of service ( see also Johannesburg Municipality vs O’Sullivan 1923 AD 201)

The learned Author John Grogan, Dismissal 2004 pg 116 comments that dishonesty denotes all forms of conduct involving deception on the part of the employee. The onus is on the employer to prove that the employee acted with the intention to deceive.

P23 – Whether the Applicant acted dishonestly, relates to his state of mind at the time [of the dishonest act] See Nkosinathi Ndzimandze & Another v Ubombo Sugar Limited IC 476/05

In the Central Bank of Swaziland vs Memory Matiwane ICA 110/93 and Swaziland United Bakeries vs Armstrong Dlamini ICA 117/91) the court held that in arriving at a decision in an application for the determination of an unresolved dispute, the Industrial Court must evaluate the facts and evidence placed before it and to that end have regard to the facts and evidence available during the disciplinary hearing and appeal hearing. This principle applies mutatis mutandis in an arbitration.

P31 – It is not my prerogative to substitute a charge that would be relevant to the facts that have been proved in order to reach the correct result. ( see Central Bank of Swaziland vs Memory Matiwane ICA 110/93 and Swaziland United Bakeries vs Armstrong Dlamini ICA 117/91)

21. Nkosinathi Ndzimandze & Another v Ubombo Sugar Limited IC 476/05

DISHONESTY

Whether the Applicant acted dishonestly, relates to his state of mind at the time [of the dishonest act]

P7 - It is trite law that in order for the dismissal of an employee to be deemed fair, there must exist fair and valid reasons for terminating him/her. The requirements of procedural and substantive fairness are that the employer must follow a fair procedure in arriving at the decision of terminating an employee’s services. It therefore goes without saying that disciplinary proceedings ought to be conducted in a neutral, fair and impartial environment and manner for whatever misconduct [alleged against ] an employee. The widely accepted elements of fair procedure include the following:

a. Investigation of the matter to establish the facts

b. Prior Notice to the employee of the precise charges that he or she is to face at the hearing

c. Prior notice to the employee of his or her right to be represented, normally by a co-worker or union official

d. An impartial presiding officer

e. Ample time and opportunity to be given to the employee to represent his/her case in rebuttal of the charge(s) he or she is facing, which right includes calling [and examining] his witnesses in support of his case.

f. The employee must be present at the hearing and everything must be done to enable him to understand the proceedings

g. The employee must be notified in writing of the employer’s decision

h. The employer must provide the employee with reasons why dismissal was seen as the most appropriate sanction, and that there [must] be a right of appeal.

Substantive fairness on the other hand, relates to the reason for the dismissal….There must be a fair reason for the termination of an employee’s services. The law here seeks to protect employees from arbitrary termination of their services at the employer’s whim….Every employer is saddled with the responsibility to ensure that when the employee is dismissed, such dismissal is in line with the dictates of…labour laws and of course natural justice. Failure to adhere to the same will render such dismissals…unfair.

P13 - The respondent refers me to te case of Metal Allied Workers’ Union vs Horizon Engineering PTY Ltd (1989) 10 ILJ 782, wherein it was held that the onus rests on the employees to provide satisfactory explanation of their absence.

P20 – In Van JAARSVELD & Van Eck: Principles of Labour law (2nd Edition) at page 198; it is stated that “in general, the holding of a disciplinary hearing is regarded as a pre-dismissal procedure and will prevent the impression that the employee was dismissed unfairly. Therefore an employee should be given a fair and proper disciplinary hearing before being dismissed”

In Nkosinathi Ndzimandze & Another v. Ubombo Sugar Ltd, Industrial Court 476/2005, Dunseith JP (as he then was) stated with regard to procedural irregularity, that even in situations where management is convinced of the guilt of employees, it is still obliged to ensure that fair disciplinary process is observed”

24. STAWU/Veli Kunene vs UNITRANS CMAC SWMZ 481/09

INDIVIDUAL ACTION VIS COLLECTIVE ACTION

P19 – In the SACTWU & Others v Novel Spinners PTY Ltd 1999 8 LC, THE LEARNED Zondo J, pronounced that it was inappropriate for an employer to take into account warnings given for individual action when it considers an appropriate penalty in respect of collective action.

I do not think that the SACTWU case is of any assistance to the Applicant, as it is distinguishable.

Firstly, the offence that was under review in the learned Zondo’s decision was work stoppage and in this matter, it was threatening or intimidating a fellow worker.

Secondly, Zondo J had been appraised of the reasons that led the employer to issue different sanctions, yet the employees were charged with a similar offence, but it is not so in this matter.

Thirdly, the learned Judge in the SACTWU case was appraised of the charges of all the employees who were involved in the matter, I have only been showed the Applicant’s charge sheet.

P11- The learned Judge H.J. Erasmus et al in Superior Court Practice, Juta (2004) Pg B1-23 in their commentary on the South African Rule 4 which is pari materia with the High Court of Swaziland Rule 4, state that in the context of the rule “apparently” means “seemingly” as opposed to “actually”. In my view in the context of Rule 8 of CMAC Rules “appears” means “seemingly” but not “actually”.

P16- Once a Commissioner decides to refer the matter to arbitration, he becomes functus officio, and he ceases to be a commissioner, but thereafter becomes an Arbitrator for purposes of granting a default judgment.

P20 - Whilst evidence attributed to a witness by minutes of a disciplinary hearing constitutes hearsay if not confirmed at a subsequent meeting, it is however of certain circumstantial value. (See Zephania Ngwenya vs RSSC IC 262/01)

P28 – Insubordination is a more serious offence than insolence because it pre-supposes a calculated breach by the employee of the duty to obey the employer’s instructions. The code requires that defiance must be gross to justify dismissal. This means that the insubordination must be serious, president and deliberate. (see Chemical Worker’s Industrial Union & Another vs AECI Paints Natal (PTY) Ltd 1988 ILJ 1046 (IC).

Further, the employer should adduce proof that the employee was in fact guilty of defying an instruction. The gravity of the insubordination (or indeed whether the refusal to obey the instruction amounts to insubordination, further the defiance must be willful on the part of the employee and lastly, the reasonableness or otherwise of the order that was defied. See Haywood vs Combo Track PTY Ltd T/A Powerman (2004) 25 ICJ 2247 (BCA) and Building Construction and Allied Workers Union vs E Rodgers & C Buchel CC & Another (1987) 8 ILJ 169 (IC) in Grogran Workplace law 9th Edition.

P34 – Dishonesty is a serious misconduct and destroys the employment relationship, and has the effect of undermining the trust that the employer has in the employee. In NEDCOR Bank Ltd vs Frank & Another (2002) 7 BLLR 600 (LAC) at page 60, Justice Willis JA commented that dishonesty entails a lack of integrity, straightforwardness and a particular willingness to steal, cheat, lie and act fraudulently. See Toyota SA Motors PTY Ltd vs Radebe & 3 Others (2000) 21 ILJ 340 (LAC)

P35 – The learned author, Grogan, in his book Dismissal at page 116, remarks that dishonesty is a generic term embracing all forms of conduct involving deception on the part of the person. He comments further that an employer has to establish that an employee, acted with intent to deceive. The learned Judge in Nkosinathi Ndzimandze and Another vs Ubombo Sugar Case No 476/05 at page 16 shares the same sentiments.

P47 - The learned Author John Grogan, Dismissal 2004 pg 116 comments that dishonesty denotes all forms of conduct involving deception on the part of the employee. He comments further that the employer has to establish that the employee acted with the intent to deceive. See Nkosinathi Ndzimandze & Another v Ubombo Sugar Limited IC 476/05

P48– “…[the employee]by his deception broke the trust bestowed upon him by the Respondent, I further hold that such dishonesty was calculated and therefore cut at the fabric of the employment contract. The Respondent cannot be expected to employ a person who deliberately disregards rules and procedures and lies with impunity. The length of service of the applicant and his previous clean record cannot in my view override the gravity of the offences he committed. See Cater vs Value Truck Rental 1 BLLR 88 (Se); Council for Scientific and Industrial Research vs Fijen 1996 (2) SA 1 (A).

P50 – Notwithstanding the principle that an agreement cannot be permitted to stultify legislation that otherwise prohibits that transaction. In my view =, what respondent did, with full knowledge of the law, voluntarily and without duress is an exception to the principle. Respondent did not do so negligently, it had full knowledge See Bank Van Africa BPR vs Ersteen 1964 (1) SA 74 (N) Ed Van der Merwe et al: Contract - General Principles pp29-33. In my view, Respondent took a conscious decision to award Applicant a severance package in spite of a statutory provision enacted for its interest, it cannot now raise estoppel on the basis that he was not entitled to it in the first place. See Levy and Others vs Zalrut Investments (PTY) Ltd 1986 (4) SA 749 (w).

In now turn to consider if the deductions were lawful. Regarding a tax ]directive], it has been held by the High Court of Swaziland and the Industrial Court that once a person ceases to be an employee because of his dismissal, the former employer is not obliged or entitled to deduct any amounts from any payment made to the ex employee. See Fraser Alexander (SWD) vs Jabulani Shongwe and Another IC 199/2005; Andrew Mkhonta and 6 Others, Abel Sibandze and 4 Others vs Swaziland Posts and Telecommunications IC 210/05; Lewis Stores PYT Ltd vs Gugulethu Nsibandze and Others IC 39/04.

P23 – The Respondent submits that the Applicant was told to go back to work on two (2) occasions; it was during the pre-conciliation session and conciliation process all at CMAC. It is alleged that on both occasions the Applicant refused to be reinstated or go back to work. It is argued on behalf of the respondent that…the Applicant was invited…to discuss the dispute or issue of the alleged dismissal, but Applicant refused…The Applicant’s case is hereby dismissed.”

P27 - In Oscar Mamba vs Swaziland Development and Savings Bank IC 81/96 (Parker J) it was held by Judge Collins Parker that it is a cornerstone of labour law that an employee be given an opportunity to state his case. This case then went on to state the minimum standards that are expected of a “fair hearing”. The learned Judge pointed out that the employee must be informed of the charge (s) he is to face. This requirement flows from the need for adequate preparation, since an accused employee cannot prepare a defense if they are ignorant of the charges they are required to answer”

The definition of an employee in terms of the Industrial Relations Act 2000 gives rise to a two step enquiry to determine whether a litigant is an employee. The fist question is whether the person works for pay or remuneration under a contract of service. In other words is the person a common law employee.

If the first enquiry concludes that the relationship is not a contract of service, the Court makes a second enquiry, namely whether the person works for pay or remuneration under an arrangement other than a contract of service involving control by, or sustained dependence for work, upon another person”

From the evidence adduced by the Applicant, I have failed to conclude that the Applicant and the Respondent entered into any form of contract of employment.

The Applicant has failed to state whether the contract entered into was verbal, or done in writing, if it was done in writing to provide documentary proof that indeed a contract of employment was entered into between the parties. If verban, he failed to state where, when and who represented the Respondent whenhe was employed….He only received the agreed amount once…he would get the odd E200 here and there but did not state under what circumstances. Based on the evidence submitted by the Applicant I am not convinced on a balance of probabilities that the Applicant was an employee of the Respondent.

9.1 - John Grogan in his book Dismissal loosely translated retrenchment as the termination of employment on the ground of superfluity of workers due to economic downturn.

9.2 – It has also been referred to as dismissal based on Operational Requirements. Therefore there must be an objective link between the dismissal/ retirement and some economic technological or similar need of the employer. Retrenchment is therefore a dismissal …for Operational Requirements.

9.14 - The test for substantive fairness in dismissal for operational requirements as stated in John Grogan, Workplace law, 9th edition, 2007, Juta, Page 226 is “whether the dismissal was operationally rational”

34. Thabo Simelane vs JD Group Swaziland IC 166/02 (Nkonyane J)

CONSULTATION / RETRENCHMENT

“The Court is satisfied that the Respondent did serve the notice in order to comply with the requirements of section 40(2) of the Employment Act. That section however is couched in general terms. There are issues that will require consultation with the individual employee, which if not done, the employee will be prejudiced”

P14 – Perhaps once needs to point out that an arbitration under the auspices of CMAC is an hearing de novo and that the decision of the arbitrator is not reached with reference to the evidential, material that was before the employer at the time of the inquiry, but evidential material placed before the arbitrator during the arbitration hearing. As such, in arriving at my decision, I will use evidential material presented to me during the arbitration hearing.

P16 – A question which however lingers in my mind is that of whether the decision to dismiss the Applicant was an appropriate sanction herein. Perhaps, as a starting point in this regard, one can borrow from the words of Trip AJ in Standard Bank SA Limited vs CCMA and others [1998] 6 BLLR 622 at paragraphs 38-41 where he states:

“It was one of the fundamentals of the employment relationship that the emplpoyer should be able to place trust in the employee…. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it”

That decision was followed by Metcash Trading Limited T/A Metro Cash and Carry and Another v Fobb and Another (1998) 19 ILJ 1516 (LAC) at paragraph 16-17 where the learned judge [Mlambo J] found that in relation to the consumption of a single 250 ML bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”

The principle on which these decisions are based is encapsulated in a dictum of Conradie JA in De Beers Consolidated Mines Ltd vs CCMA and Others (2000) 21 ILJ 1051 (LAC) at paragraph 22 where he states that:

“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, and should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal (or misappropriate) small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise”

“An Arbitrator has to make his own assessment of the facts and evidence adduced before him during an Arbitration.CENTRAL BANK v MEMORY MATIWANE 110 of 1993 and SUB v ARMSTRONG DLAMINI 117/94

Dishonesty is a very serious misconduct and destroys the employment contract. The length of service of the applicant and his previous clean record cannot in my view override the gravity of the offences he committed. Although he was not in a position of trust, the respondent could not be expected to continue to employ a worker who steals. See 476/2005 Nkosinathi Ndzimandze & Another v. Ubombo Sugar Ltd, Industrial Court (Dunseith JP), Cater vs Value Truck Rental 1 BLLR 88 (Se); Council for Scientific and Industrial Research vs Fijen 1996 (2) SA 1 (A).

It is my opinion that evidence dehors what is recorded in the minutes to prove that what did happen during the disciplinary hearing is unreliable, especially evidence which is given by a witness other than the Chairman.

The Industrial Court has held that an employee’s right to representation is one of the six minimum standards that should be met before a disciplinary hearing can be said to have been fair. Christopher H. Dlamini vs Inter Africa Suppliers (SWD) Ltd IC 55/1997, Oscar Mamba vs Swaziland Development and Savings Bank IC 81/96 (Parker J)

P33 - In review proceedings, the court looks at the correctness of the procedure adopted in arriving at the decision; the court is concerned with the decision-making process – whether in arriving at the decision, the court applied its mind to all the relevant issues in accordance with the statute, the principles of natural justice as well as the Constitution.

It is common Cause that the court a quo made a finding of law that the contract of employment of the First Respondent was tacitly renewed. Tebutt JA, in the case of Takhona Dlamini v The President of the Inductrial Court of Swaziland and Another AC 23/97 at Pges 15-16 (Unreported) who delivered the majority decision after analyzing sections 11 (1), 11 (15) and 19 of the Industrial Relations Act as well as South African Case law stated the following:

“It is a matter of construction of the statute conferring the power of decision as to the reviewability of such decision where the tribunal concerned has committed a material error of law. In the present instance, the Legislature, although it created a specialist Court in Section 11(50 of the Act, specifically retained in the High Court, the power to review decisions of the Industrial Court on Common Law review grounds. It therefore, di not give exclusive jurisdiction to the Industrial Court of Appeal on errors of law.

Tebbutt JAalso referred to the decision of the Local Road Transport Board and Another vs Durban City Council and Another 1965 (1) SA 568 AD in which Holmes JA, delivering his Judgment of the court, cited with approval the decision in Goldfields Investments Ltd and Another vs City Council of Johannesburg and Another 1938 TPD 551, where it was held as follows:

“A mistake of law per se is not an irregularity, but its consequences amount to a gross irregularity where a judicial officer although perfectly well intentioned and bona fide does not direct his mind to the issue before him and so prevents the aggrieved party from having his case fully and fairly determined”.

P35 - His Lordship Tebbutt JA, also cited with approval the case of Johanesburg Stock Exchange v Witwatersrand Nogel Ltd 198 (3) 132 at 152 A-D where Corbett JA stated that the common law grounds for review as follows:

“Broadly, in order to establish review grounds, it must be shown that the President failed to apply his mind to the relevant issues in accordance with the behest of the statute and the tenets of natural justice…. Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further un ulterior or improper purpose; or that the President misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones or that the decision of the President was so grossly unreasonable as to warrant the inference that he had failed to apply his mind in the matter in the manner afore-stated”

P41 – The fact that the First Respondent has not been paid terminal benefits is not evidence of tacit renewal of the contract; it merely shows at that stage he had lodged an appeal and awaiting the outcome.

P10 – John Grogan, Workplace law, 9th Edition, page 204, sub title 5.2.12 - “Where and appeal is provided for in a disciplinary code, it must be afforded unless the employee waives his or her right of Appeal.”

P15 – In the matter between SFTU vs The Minister of Enterprise and Employment ICA 11/97 …the learned Judges of Appeal quoted Baxter, p. 540 when Lord Wright stated the policy of the Courts in 1942:

“If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”

P17 – John Grogan (2005) Workplace law (8th Edition) p. 157 states that the substantive fairness of a dismissal must meet the following criteria: “Whether or not: 1. The employee flouted or contravened a rule or standard regulating conduct in, or relevant to the workplace; 2. The employee was aware, or could have reasonably been expected to have been aware of the rule or standard; 3. The rule or standard has been consistently applied by the employer; 4. The Dismissal was an appropriate sanction for the contravention of the rule or standard”

In making a determination on the reasonableness of the dismissal of the Applicant, I make reference to British Leyland (UK) Ltd v Swift, quoted in Le Roux and Van Niekerk p119: “ The correct test is, was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.”

43. SFTU vs The Minister of Enterprise and Employment ICA 11/97

44. Musa Dlamini vs Time Electrical CMAC SWMZ 445/09 (Dlamini V. Arb)

CONVICTION

P16 – The Industrial Court of Swaziland has pronounced that even in cases where the employer is convicted of the guilt of an employee, a disciplinary inquiry cannot be dispersed with. See Alpheus Thobela Dlamini vs Dalcrue Agriculture Holdings IC 123/05; Maria Vilakati and Another v Ngwenya Glass PTY Ltd IC 139/04

P20 – In Dinabantu Ndwandwe vs Vuka Sidwashini Farmers Association IC 520/06, Dunseith JP remarked that: “The definition of reinstatement as contained in the Industrial Relations Act 2000 (as amended) must be seen in the context in which the term is used in the body of the Act. This context is that of unfair dismissal, for which the remedy of reinstatement is provided. The Industrial Court is empowered to order specific performance of a contract by way of reinstatement. The object of such an order is to attempt to restore the employee to the same position in which he would have been, if he had not been unfairly dismissed”

P22 – It has been held by the South African Industrial Courts that where the offer for reinstatement is conditional and defective, that offer is inadequate and insufficient and as such the employee is entitled to reject the offer and proceed to court. See Usher v Linar (PTY) Ltd (1992) 13 ILJ 243 (IC).

P23 – In United People’s Union of South Africa on behalf of Phiri v Meshrite PTY Ltd (2006) 27 ILJ 431 (BCA), the Court held that an offer to reinstate an employee on the terms and conditions upon which he was employed obliterates the earlier dismissal. However [where] the terms and conditions are not identical, that employee established a prima facie case of dismissal.

P26 - In Feast vs Edmar Engineering cc (2006) 27 ILJ 222 (BCA) it was held that where an employee’s refusal to an offer of reinstatement is unreasonable, it is not appropriate to award compensation.

The Labour Appeal Court of South Africa in Mkhonto vs Ford NO and Others (2000) 21 ILJ 1312 (LAC) opined that the guiding principle whether to compensate an employee who has rejected an offer is fairness.

45. SEB v Collie Dlamini IC 2/07

REINSTATEMENT

P13-14 “ However, we do not find anything in the Republication Press case judgment which supports the Respondent’s contention that where the Court orders reinstatement off a worker, as a matter of law and logic, such reinstatement is or must be with retrospective effect from the date of the dismissal. Such interpretation would do violence to the clear words used in Section 16 (10 (a) of the IRA. The section empowers the court to order an employee to reinstate the employee from any date not earlier than the date of dismissal. It could even conceivably be in the future, that is to say, after judgment. The court has a discretion on the issue.”

“The definition of reinstatement as contained in the Industrial Relations Act 2000 (as amended) must be seen in the context in which the term is used in the body of the Act. This context is that of unfair dismissal, for which the remedy of reinstatement is provided. The Industrial Court is empowered to order specific performance of a contract by way of reinstatement. The object of such an order is to attempt to restore the employee to the same position in which he would have been, if he had not been unfairly dismissed”

If a party that seeks to rescind a judgment that has been made in his/her absence in terms of section 81(10) should show and demonstrate good cause why the rescission should be granted, the same standard should as well apply to a party that seeks to rescind an award in terms of section 17(6) (a). Any departure from the standard yardstick provided in Section 81(10) of the Act when adjudicating over rescission applications brought in terms of Section 17 (6) would not find any legal support and would therefore amount to a material misdirection. Good Cause orSufficient Cause is the criterion for rescission applications under the Industrial Relations Act, 2000 (as amended) in the absence of any provision to the contrary. In any event, an award made in the absence of an affected party is still default judgment and both have the same legal weight.

“Whether or not sufficient cause [or good cause] has been shown to exist depending on whether:

a. The applicant has presented a reasonable and acceptable explanation for his or her default.

b. The Applicant has shown the existence of a bona fide defence, that is, one that has some prospect or probability of success.

c. The test is whether Good Cause orSufficient Cause is has been shown by the party seeking relief is a dual nature, it is conjunctive and not disjunctive. An acceptable explanation of default must co-exist with the evidence of reasonable prospects of success on the merits. It is not sufficient if only one of the two requirements is met. For obvious reasons, a party not showing prospects of success on the merits will fail in an application for rescission of a default judgment against him, no matter how reasonable and convincing the explanation for the default. And ordered judicial process would be negated if on the other hand, a party who could offer no explanation of his default than his disdain for the Rules was nevertheless permitted to have a judgment against him rescinded on the ground that he had reasonable prospects of success on the merits”.

d. The Commission has adopted and used this criterion as expounded by the decided cases in a number of rescission applications. See:

e. Creative Car Sound and Another vs Auto Mobile Radio Dealers Association (PTY) Ltd – 2007 (4) SA (at 555), the Court cited with approval the decided case of Collyn vs Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2002 (6) SA 1 (SCA. “with the underlying approach, the Courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; by showing that his application is made bona fide; and by showing that he has a bona fide defense to the Plaintiffs Claim which Prima Facie has some prospects of success” The Court reasoned that “In essence, the Applicants are required to demonstrate prospects of success on the merits. This in my view means that the grounds of the Defense must be set forth with sufficient particularity and detailto enable the court to conclude that there is a bona fide case and that the application is not being brought for the purposes of delay”

g. “Inasmuch as the above principle was expounded in a different factual context to this application, the above principle of law has equal relevance and application to the rescission application under the Industrial Relations Act…Bare and unsubstantiated allegations as regards the Applicant’s case would not be sufficient in discharging this onus.”(Page 6). See also Sifiso Khumalo vs Inyatsi Construction – CMAC Case No NHO 154/08 (Page 8).

i. After enumerating as afore-going, the meaning and/or dutythat is upon an applicant in a rescission application, the Executive Director of the Commission in Sifiso Dlamini vs L.C. Von Wissel PTY Ltd - CMAC Case No SIM 001/08 (at page 10) went on to state as follows: “ Although the Respondent has not filed its papers in the opposition to the application, he however has given evidence under oath setting out the basis of his claimmfor unfair dismissal. Therefore the applicant bears the onus of establishing a bona fide defense by, inter alia, substantively responding to all those allegations that have been made by the respondent at paragraph 3 of the default judgment and set out allegations , if need be, that ground its defense.”

“Since the Applicant is burdened with the onus of proving that the Respondent’s services were fairly terminated, the Applicant is required to set out comprehensively in its founding affidavit allegations of fact that establish on a balance of probabilities, that the services of the Respondent were terminated in accordance with Section 42 of the Employment Act. In this instance, where the Respondent has not filed any papers, the applicant is required to discharge the onus by admitting or denying, confessing and avoiding allegations of fact that have been stated under oath as contained in the default judgement”

P19 – The Respondent…has made reference to the work of John Grogan titled Dismissal Discrimination and Unfair Labour Practices (200) at page 246-247, wherein it is stated that: “dishonesty is a generic term embracing all forms of cionduct involving deception on the part of the employees’.The author further states that , “In employment law, a premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contractis founded. Dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer or making false statement or misrepresentation with intention of deceiving the employer”.

P20 - The Respondent also refers to the case of Nedcor Bank Ltd vs Frank and Others (2002) 23 ILJ 1243 (LAC) in which the Labour Court of Appeal held that, Dishonesty entails a lack of integrity or straightforwardness and in particular a willingness to steal, cheat, lie or act fraudulently”.

P27 – In the case of Nkosinathi Ndzimandze and Another v Ubombo Sugar Limited IC Case No 476/05 at Page 21, the Court stated that “calculated dishonesty cuts the root of the employment Contract and it destroys the employment relationship”

P32 - John Grogan in his book Dismissal Discrimination and Unfair Labour Practices, 2nd Edition, Juta, 2007 states that employees are duty bound to uphold their employer’s good name. Further, that conduct that tends to bring the name of the employer into disrepute may therefore justify disciplinary action, even if, in rare instances, such conduct cannot be classified as another recognized offence. Offensive behavior to a client falls under this heading. See Concorde Plastics PTY Ltd v NUMSA & Others (1998) 2 BLLR (LAC).

P33 - John Grogan states that the general rule held by Courts is that a hearing held after a decision is made to dismiss an employee is axiomatically unfair.

A corollary to this is that employers may not generally correct a procedurally unfair dismissal by holding a proper hearing (see Nasionale Parkeraad vs Terbanche (1999) 20 ILJ 1520 (LAC)

In the case of Semenya & Others vs CCMA & Others (2006) 27 ILJ (LAC), on appeal, it was stated that an employer can cure the absence of a hearing by affording what the Court likened to Private Arbitration, where the decision of an outside third party binds the employer

P36 - Grogan in his book Workplace law, 9th Edition, 2007 agt page 122, states that “a dismissal must not only be for a fair reason, but also that it must be effected in accordance with fair procedure”

P12 - Van Niekerk in his work Unfair Dismissal 2004 Edition states at page 43 that in recent Labour Appeal Court (South African) decisions, the court has constantly emphasized the necessity of a relationship of mutual trust and confidence in the employment relationship and has upheld dismissals for dishonesty even when relatively small amounts have been involved. There is also the unreported Industrial Court of Appeal Judgment of RSSC vs Paul Mavundla Case No 5/2006 where at paragraph 24, it is opined as follows: “Routinely, lowly paid workers such as shelf packers, are dismissed, and fairly so, when items of small value are stolen. Value of stolen items cannot be determinative just as the period of service of the offending employee should not be”.

P13 – Tip AJ in Standad Bank SA Limited v CCMA and Others [1998] 6 BLLR 622 at paragraph 38-41 where he states: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee…a breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it”

Metcash Trading Limited T/A Metro Cash and Carry and Another v Fobb and Another (1998) 19 ILJ 1516 (LAC)at paragraph 16-17 where the learned judge [Mlambo J] found that in relation to the consumption of a single 250 ML bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”

The principle on which these decisions are based is encapsulated in a dictum of Conradie JA in De Beers Consolidated Mines Ltd vs CCMA and Others (2000) 21 ILJ 1051 (LAC) at paragraph 22 where he states that:

“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, and should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal (or misappropriate) small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise”

P21 - The standard of proof in civil cases is that of proof on a balance of probabilities. (see Schwikkard & Van der Merwe, Principles of Evidence 2nd Edition , page 544)

The position at law is that in order for an employee to be dismissed in a procedurally fair manner, that worker has to be subjected to disciplinary hearing (See J. Grogan, Workplace law: 9th edition, page 189)

P22 – The principle, however, is that the employer may be entitled to proceed with the hearing in the absence of the employee if the employee refuses to attend the hearing or participate in the hearing without good cause. (See J Grogan’s Workplace law 4th Edition, at page 149)

Whilst it is true that justice dictates that the hearing should be held as soon as possible after the incidents…the law does recognize that an employee needs time to prepare for the said hearing (See Oscar Mamba vs Swaziland Development and Savings Bank Industrial Court Case No 81/96)

“What is being weighed in the balance is not qualities of evidence but the probabilities arising from the evidence and all the circumstances of the case.”

In a dismissal case the onus is borne by the Respondent to prove that in terminating the services of the Applicant it has satisfied the requirements of Section 42 (2) (2)(a) and (b) provides that:-

The service of the employee shall not be considered as having been fairly terminated unless the employer proves:

a.) That the reason for the termination was one permitted by section 36; and

b.) That taking into account all the case, it was reasonable to terminate the services of the employee.

I have to determine on the balance of probabilities the extent to which the conduct of the applicant amounted to a dishonest act of theft. John Crogan, Workplace law 9th edition, Juta page 157-8, states that the substantive fairness of the dismissal is assessed according to the following criteria;

a.) Whether or not the employee contravened a rule or

b.) Whether or not the employee contravened a rule or;

DELISILE KWANYANE V MILADYS SWAZILAND SWMZ 233/09 – Robert S. Mhlanga

Pg 19 In the Milady’s case where the Applicant’s dismissal was regarded unfair in that Applicant was by the Respondent induced to make the statement in that he allegedly promised her that if she were to admit in writing that she committed the offence of dishonest act in question, the Respondent would impose a lenient penalty on her namely, that she would not be dismissed, but that she might be given a warning. In this regard reference was made to Hoffman and Zeffert’s work, “The South African Law of Evidence”, Fourth Edition at page 215, wherein these authors discuss the subject of confession

Page 20 It is submitted that the Applicant was denied her right to appeal against the initial verdict, because her appeal was never entertained by the Respondent. In other words the Applicant was never called for an appeal hearing, despite the fact that she lodged her appeal against the initial verdict, hence her dismissal was procedurally unfair. In this regard reference was made to the case of Nkosinathi Ndzimandze and Another V Ubombo Sugar Limited IC Case No. 476/05.

Page 22 It is argued that from the legal perspective, the Respondent was put at the risk of contravening the law regulating authorized deductions to be made from an individual employee’s wages, following the circumvention of the credit limit by the Applicant (the underlined is my emphasis)

Overall, it is the Respondents submissions that the Applicant’s dismissal was both procedurally and substantively fair. It is the Respondents argument that in light of the evidence adduced by it in this case, it has been able to prove on a balance of probabilities that the allegations against the Applicant are true. Reference was made to an Arbitration Award, which was issued by the CCMA Commissioner in the case of Inelia Koeberg (Applicant) v Mr. Price (Respondent ) case No. ECPE 157/05

Page 29 In the case of Nkosinathi Ndzimandze and Another V Ubombo Sugar Limited IC No. 476/05 at page 21 the Court stated that; “Calculated dishonesty cuts at the root of the Employment contract and destroys the employment relationship”. In light of the foregoing, it is my finding that the termination of the Applicant’s services was reasonable in all the circumstances of the case.

Page 31 In the case of Nkosinathi Ndzimandze and Another v Ubombo Sugar Limited (Supra) at page 30 the Court stated that: “it is well established in our labour law that an important ingredient of a fair disciplinary hearing is the right to appeal to a higher level of management”

In the same case of Nkosinathi Ndzimandze’ and Another v Ubombo Sugar Limited at page 30 the Court quoted the passage from Edwin Cameron’s article; “The right to a hearing before dismissal - part 1 (1986) ILJ 183. Which is as follows: “A right to an appeal is an important safeguard, giving the affected employee a chance of persuading a tier of Authority that the adverse decision was wrong or that it should otherwise be reconsidered. In the end, the final decision will have been the subject of more careful scrutinity prolonged debate and sober reflection”

Pg 3 The Conciliation Mediation and Arbitration Commission, being an administrative and quasi judicial organ, does not have the powers and as such is incompetent to grant absolution from the instance. This has as such is incompetent to grant absolution from the instance. This has been pronounced in a number of decisions by the judges of the Industrial Court of South Africa and in arbitration awards of the CCMA, see for instance the case of chemical Workers Industrial Union obo Mthombeni v Amcos Cosmetics 1999 20 ILJ 2739 .

Pg 4 Further, to the aforementioned the law is that absolution from the instance can only be granted if the onus rests upon the Plaintiff. If the onus rests upon the Defendant there can never be an order for absolution from the instance at any stage of the proceedings. See in this regard Arter v Burt 1922 AD 303). In this case the Applicant alleges that the Respondent unlawfully terminated his services. He has proved that he was an employee enjoying protection of the Employment Act. The onus is therefore on the employer to prove that he has not unfairly terminated. And clearly there is no case where one can grant absolution from instance.

Pg 14. The Applicant denies the Respondent’s allegation to the effect that, he was not an employee to whom Section 35 of the Employment Act 1980 applied, by virtue of the fact that he (Applicant) was a member of the Respondents family. The Applicant argues that the Relationship between him and the Respondent is an employer-employee relationship, which emanates from the aforesaid contract of employment herein. In this regard, reference is made to the case of Meshack Zwane v The Alliance Church in Swaziland (IC Case No.41/99 at page 4 wherein the following essentials elements of a contract of employment were outlined namely; an agreement, in terms of which services are rendered, under the authority of the employer for remuneration.

Pg 16 Respondents submission that the Relationship between the parties was not a contractual relationship, but it was of honour and obligation”. It is argued that the parties were not ad idem and as such they never intended to form a legally enforceable contract of employment. In this regard, the Respondent Inter alia referred to the case of church of the Province of Southern Africa Diocese of Cape Town V CCMA and others (2001) 22 ILJ 2274 (LC)

The Resignation of Applicant in constructive dismissal grounds meets the criteria of constructive dismissal as indicated in the Employment Act, 1980 as amended (hereinafter to as the Act ) and as guided by the applicable case law.

Section 37 of the Act provides that:

“When the conduct of an employer towards an employee is proved by the employee to have been such the employee can no longer reasonably be expected to continue in his employment and accordingly leaves his employment, whether with or without notice, then the services of the employee shall be deemed to have been unfairly terminated by his employer”.

An employee terminated a contract of employment with or without notice because the employer made continued employment intolerance for the employee” …that “’ in most instances constructive dismissal is triggered by a resignation” .

Van Niekerk goes on to argue that:

“the nature and extent of the right to claim unfair dismissal in these circumstances if often misunderstood and that the law reports are littered with cases in which employees, having resigned in arduous but not intolerable working conditions,seek vengeance on their erstwhile employers. The courts have been less than generous in extending assistance to employees in these circumstances and a high proportion of constructive dismissal cases fail at the first hurdle i.e. the requirement to prove existence of dismissal”…that the courts have adopted an objective approach to constructive dismissal. It is not the employee’s say so or perception of events that establishes intolerability, or even the employer’s state of mind.

What is relevant is the conduct of the employer in an objective sense”,…that “this implies not only that the test should be objective but that it should be an act of final resort when no alternatives remain. The courts have also confirmed that the issue of intolerability’ means that there is an onerous burden on the employee. It requires the employee to show that, in the circumstances, continued employment would be “objectively unbearable”.More recent judgement and awards have emphasized this strict approach to constructive dismissal and, in particular, the requirement that the employee establish some harsh, antagonistic or otherwise hostile conduct on the part of the employer that precipitates the employee’s resignation.In summary, the relevant considerations include the following:

· The employers conduct does not have to amount to a repudiation of the employment contract.

· The employee who claims constructive dismissal must objectively establish that the situation has become so unbearable that he or she cannot be expected to work any longer.

· The employee must show that he or she would have carried out on working indefinitely, but for the employer creating the unbearable circumstances.

· The employee must exhaust all possible remedies before resigning.

John Grogan: Workplace Law, 8th edition, 2005) Juta & Company LTD at page 113 highlights examples if intolerability and indicates that these include but are not limited to:

“An offer of interior employment coupled with a threat of dismissal if an employee did not accept the offer; unlawful deductions from an employee salary; sexual and other forms of harassment; unjustified disciplinary action ; the denial of company transport or exerting undue influence on the employee to resign. In making out a case for constructive dismissal ….

Grogan J goes on to argue in page 115 that:

“the employee’s mere subjective feeling that he or she has been unfairly treated is not in itself sufficient”… that “the test for whether the employer has rendered the prospect of continuation of employment relationship intolerable, is objective i.e. the existence of a constructive dismissal cannot be determined from the state of mind of the employee alone”.

“That there are three requirements for constructive dismissal to be established, the first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerablefor the employee. The third is that it must not have been the employee’s who had made continued employment intoralable. All these three requirements must be present for it to be said that a constructive dismissal has be established. If one of them is absent, constructive dismissal is not established. Thus there is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace”.

The Applicant lodged a dispute with the Commission for an Order directing Respondent to grant it recognition. The procedure by which Applicant can acquire recognition is outlined in Section 42 of the Industrial Relations Act. 2000 (as amended) In terms of Section 42 (1), any registered trade union or staff association may notify an employer that it seeks to exercise its organizational rights in respect of a specified class of employees.

It is self evident, however that a union can only represent its members. SEE JOHN CROGAN “WORKPLACE LAW” 8th EDITION AT 327.

Section 2 of the Industrial Relations Act, 2000 (as amended) defines a member of staff as an employee who;

a.) Has authority on behalf of the employer to employ, transfer, suspend, lay off, recall, promote, dismiss, reward, discipline other employees or authorize such action, when the exercise thereof is not solely of a routine nature or clerical nature, but requires the use of an independent judgment.

b.) Participates in the making of general company policy.

c.) Works in a capacity which requires the employee to have full knowledge of the financial position of the employer.

d.) Has free personal access to other confidential information substantially affecting the conduct of the business of the employer.”

Section 42(5) of the Industrial Relations Act (as amended) provides that; if not less than fifty percent of the employees in respect of which the trade union or association seeks recognition are fully paid up members of the organization concerned, the employer shall, within 30 days of receipt of the application and in writing –

a.) Grant to the applicant; or

b.) If the employer is in doubt, and advises the applicant so in writing, the parties shall go for verification count.

c.) If the employer decides not to grant such recognition, the employer shall grant such recognition, the employer shall lodge with the Court the reasons for the refusal to grant recognition and serve a copy thereof on the industry staff association…”

63. JULUKA DLAMINI V JJ SIGNS SWMZ 63/09 MR. Robert Mhlanga Arb

RETRENCHMENT (TERMINATION OF SERVICES)

Page 18 states that the notice of retrenchment does not manifest that there was previous consultations between the parties. In, the Respondent does not allude to the aforesaid meetings (Annexure “JJ2” allegedly held between the parties regarding the issue of the contemplated retrenchment.

In the aforementioned cases, the Court laid down a legal requirement to the effect that where an employer contemplates the retrenchment of an Individual employee; the employer legally obliged to consult with the individual employee.

b.) In the case of Johnson and Johnson (Pty) Ltd V Chemical Workers Industrial Union and Others (1999) 20 IJL 89 lac, The Labour Appeal Court of South Africa stated that; “The employer must initiate the consultation process when it contemplates dismissal for operational reasons. It must disclose the relevant information to the other consulting the relevant information to make representations about any matter on which they are consulting; it must consider these representatives and, if it does not agree with them, it must give reasons”.

c.) Van Jaarsveld and Van Eck in their book titled “principles of Law” second Edition at page 225, state that; “substantive fairness with regard to retrenchment means that a valid or bona fide and fair reason must exist for the termination of the employment of an employee on account of operational reasons”.

d.) In the Phylis Phumzile Ntshalintshali v Small Enterprise Development Company, Industrial Court case no. 88/2004 at pages 9-10the Court stated that “an employer has prerogative to structure its establishment and to determine the size and character of its workforce in the manner most suitable for its requirements. Where however decision is made which results in the retrenchment of employees, the modern law provides procedural and substantive safeguards to ensure that the decision is bona fide and implemented in a fair and objective manner after reasonable effort has been made to avert or minimize the loss of jobs.

Page 16 The Applicant in this case here argues that she is a commercial cleaner and that she must be paid E973-00 being the statutory prescribed minimum wage of a commercial cleaner in terms of the retail Hairdressing, Wholesale and Distributive Trades order of 2006.

Page 22 In the case of this matter the evidence led herein reveals that the Applicant was unfairly treated by the Respondent in that she was discriminated against in terms of disciplinary action. The supervisor failed to discharge or execute her duties as a supervisor.

a.) In the case of Sindi Mabuza v NEDBANK Swaziland Limited Case No.45/2002 at pages 14 and 15, the Court in its analysis of evidence stated that; the Applicant was junior and under the supervision of Comfort Khumalo. As a supervisor Comfort had an extra duty to exercise caution that no fraudulent accounts are opened.

b.) The Court in its ultimate decision in the Sindi Mabuza’s case (supra) at page 17 stated that; “taking into account all the circumstances of this case, it was not fair for the Respondent to dismiss the Applicant only, in the circumstances that showed that both the Applicant and her supervisor were equally guilty of negligence.

In the circumstances of this case the Respondent was clearly unreasonable and discriminatory”

65. NONTOBEKO SIMELANE & 11 OTHERS SWMZ 260/08 - Arb. B. Ngcamphalala

LEAVE / MATERNITY LEAVE

Pg 10. Defines maternity leave as leave granted to an employee arising from, or in contemplation of her confinement.

a.) Section 102 of the Employment Act 1980 (as amended) goes on to state that;

Every female employee whether married or unmarried, who has been in continuous employment of her employer for 12 months of more shall be entitled to maternity leave with at least 2 weeks full pay upon delivering to her employer

“ An employee who has completed the probation period shall be entitled to 30 days maternity leave with full pay”

c.) The dispute between the parties relates to whether 30days herein refers to working days or calendar days. In the case of Master Garments (Pty) Ltd v Swaziland Manufacturing and Allied Workers Union 561/06.

d.) Judge President P.R. Dunseith stated that;

“ if an employee does not normally work Saturday and Sunday then these days cannot be regarded as leave days”

e.) The Court also noted by way of comparison that the Regulation of Wages of Pre-Schools Day care Centre’s Order, 2006 …

The Court in the case of Pretoria Society for the Care of the Retarded vs Loots (1997) 18 ILJ 981 (LAC), formulated a test for constructive dismissal. The Court pointed out the following considerations that have to be taken into account:-

(a) Whether the employer, without reasonable and proper cause conducted itself in a manner calculated, or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

(b) Whether the effect of the employer’s conduct, in its entirety’ when judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.

(c) Whether when the employee does resign as a result of the intolerable conduct of the employer, the employee is actually indicating that the situation has become so unbearable that the employee cannot go on working for the employer. Such that by resigning, the employer is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created.

(d) The employee resigns on the basis that he or she does not believe that the employer will reform, or abandon the pattern of creating an unbearable working environment.

It is clearly stated in several legal authorities that in a dismissal, the services of the employee, and the obligations of the employer are terminated, whereas in a suspension the employee is temporarily prohibited from rendering his services to the employer pending an investigation against him. (See Van Jaarsveld & Van Eck, “Principles of Labour Law page 125). The suspension of an employee does not constitute dismissal, and therefore he is entitled to his salary and fringe benefits until he is dismissed (Laws of South Africa, First Reissue Vol. 13, Part 1 para 240, see also Mabilo vs Mpumalanga Provincial Government 1999 ILJ 1818 (LC).

The case of the Applicant is basically that he wishes to be confirmed into the post of painter because he holds a certificate in painting. The Applicant also wishes to be paid arrear wages, leave pay and also wishes to be transferred to another work station as he does not get along with his superiors at SCOT. The Applicant relied on the cases of NIKIWE NYONI vs THE SWAZILAND GOVERNMENT INDUSTRIAL COURT CASE NO. 103/05 and also VUSUMUZI SHONGWE vs THE SWAZILAND GOVERNMENT INDUSTRIAL COURT CASE NO. 216/2000.

I have had occasion to peruse these two cases, and can distinguish these from the Applicant’s own set of circumstances. The findings of the two cases cannot be used to support the Applicant’s claims as first of all the Nikiwe Nyoni case was a case involving a permanent government employee who sought to be paid arrear acting allowance. In the instant case, Mr. Manana has not shown that he was ever appointed to act as a painter, and neither has he produced an instrument appointing him to such a position.

4. It further follows that, as the respondents expert witness admitted that it is the job that is evaluated not the individual, that where the incumbents perform the same and equal job and achieve the same and equal desired results, they should be remunerated the same and equal remuneration arising out of the job evaluation. Should however the employer wish to award for personal academic achievements while in service a different type of incentive should be established directed to that academic achievement as a stand alone reward.

5. In this regard the principles enshrined in Convention 100, “Equal Remuneration Convention 1951; which concerns Equal Remuneration for Men and Women Workers for Work of Equal Value”, of the International Labour Organisation, becomes relevant in this case. This Convention was ratified by the Government of the Kingdom of Swaziland on the 5th June 1981 and there has been no revocation of same since then. The relevant Article is article 1 (a), Article 2 (1). Further, Article 3 paragraphs 1,2 and 3 also become relevant.

6. In addition to the above observation, the parties are referred to the Industrial Court Case No. 164/05 dated 7th September 2005 in the matter between NIKIWE NYONI VS THE ACTING COMMISSIONER OF ANTI –CORRUPTION UNIT page 6 first paragraph. In that case and paragraph the respondent had relied on a document titled “SCHEMES OF SERVICES FOR THE ACCOUNTANCY CADRE”. The rationale for referring to this case is that at least the respondent had a basis on which to argue why the applicant could not be appointed to the substantive position of Principal Accountant. Similarly in the case before me one would have expected the respondents to submit a similar document on which they were basing their arguments why Teacher Leaders with a diploma qualification should remain in a separate lower grade adfinitum, irrespective of the experience and the fact that they achieved equal production with those with degrees.

7. Respondents stated that for the applicants to qualify for the grade C5/C6 the applicants must be in possession of a B.A. ED Degree. We were however given contradicting statements when the respondent witness was asked why amongst the applicants there were at least more than two who have a degree. The respondents turned around and said “there was no instrument appointing them and even then it would depend on whether there is a vacancy”. This in my view was a self defeating argument. It is common cause that applicants were long appointed as Leader Teachers.

8. In the case referred to above the Court referred to the respondents General Orders – which states “an employee employed on an ” acting” capacity must be confirmed in that position upon expiry of six months” It is an undisputed fact that the applicants were not even appointed on an “acting capacity” but these were confirmed positions hence it would be unfair to remunerate them differently. In other words if the respondents have a provision for an employee who is on an acting position that he/she would be confirmed after six months irrespective of the qualification, I am convinced that it would be even moreso to pay equal wage for equal work, with no discrimination based on qualification.

9. It is further common cause that the Swaziland Government has not rescinded from the Convention 100 ratified on the 5th June 1981.

“ Perhaps the trust common form of employee suspension arises when an employer suspends an employee prior to and until the employee attends a disciplinary enquiry, the details of which have been included in a notice to attend a Disciplinary Enquiry issued to the employee by the employer. The suspension of an employee prior to a disciplinary enquiry would ordinarily occur when the employer believes the company would be prejudiced by the continued presence of the employee at work up until the disciplinary enquiry. For example, if an accountant was accused of fraud, his or her continued presence within the Accounting Department prior to the disciplinary hearing may well prejudice the company”.

This then helps to show that suspension must not be used indiscriminately. It has become a general rule that disciplinary hearing must be held either before suspension or after suspension depending on the gravity of a case at hand.

In my view this case cannot be said to override the General Orders, as it does not seek to challenge the validity of any of its provisions, and neither does it challenge the provisions of the circular. In my opinion the case of the nursing assistants is entirely different from the case of Ms Nikiwe Nyoni, since I am not entirely convinced that the Applicants ever “acted” in any position, let alone that of a staff nurse, as there was no clear demarcation of their own duties, and when they are said to doing duties beyond their of practice and training. At least in the case of Nikiwe Nyoni, the Applicant was appointed to do the duties of Principal Accountant, and this position was supervisory in nature, and the duties were clearly specified and even annexed to the application filed to court. This has certainly not been done in the instant case.

In the premises, I cannot hold that the acting allowance claimed by the Applicants is due to them.

The Applicants’ representative however countered this evidence by saying that the case of NIKIWE S. NYONI vs SWAZILAND GOVERNMENT INDUSTRIAL COURT CASE NO. 164/05 was authority that the Applicants ought to be paid an acting allowance despite the fact that there was no provision in the General Orders, or in the Establishment Circular No. 5 of 1997.

Upon perusal of the case concerned, I have found that the applicant in that case was actually appointed by the Acting Commissioner of the Anti – Corruption Commission to perform the duties of Principal Accountant. In short, she was appointed to act as such, and was further placed on salary grade 12 on an acting basis. This means that the Applicant was duly appointed by her superiors to act in that position. On further perusal, it came to light that the duties of the Applicant as Principal Accountant were supervisory in nature, and these duties were listed in annexure “G” of the Applicants’ papers.

This position, I have further discovered, does in fact attract acting –allowance, as evidenced by page 5 of Establishment Circular 5/ 1997, and another distinguishing factor about this case is that the Applicant in that case demanded to be paid arrear acting allowance.

This case is certainly different from the case of the nursing assistants simply because the Applicant in that case was appointed to act in a position which attracted payment of acting allowance, and the issue was not whether the allowance was due to her at all, but rather that she should receive payment for a particular period.

In casu, the nursing assistants have not stated which position they acted in, and for how long they acted as such. This makes it very difficult to ascertain if at all the position they claim they acted in does attract acting allowance, and therefore if the allowance is due to them in fact. This is further complicated by the fact that they do not say how long they acted in the said position, in order to help in computing how much they ought to be paid if at all they have to be paid anything.

It was stated by Ms Mhlanga that if the period of acting is less than 3 weeks, then this could only be termed “relieving” an absent official, and not “acting” per se.

In my view this case cannot be said to override the General Orders, as it does not seek to challenge the validity of any of its provisions, and neither does it challenge the provisions of the circular. In my opinion the case of the nursing assistants is entirely different from the case of Ms Nikiwe Nyoni, since I am not entirely convinced that the Applicants ever “acted” in any position, let alone that of a staff nurse, as there was no clear demarcation of their own duties, and when they are said to doing duties beyond their of practice and training. At least in the case of Nikiwe Nyoni, the Applicant was appointed to do the duties of Principal Accountant, and this position was supervisory in nature, and the duties were clearly specified and even annexed to the application filed to court. This has certainly not been done in the instant case.

In the premises, I cannot hold that the acting allowance claimed by the Applicants is due to them.

1.1 It is common cause that the Applicant was an employee to whom section 35 of the Employment Act, 1980, applied. The burden of proof borne by the Applicant in terms of section 42 (1) of the Employment has therefore been successfully discharged.

1.2 Consequently, for his dismissal to be said to have been fair, the duty or onus of proof was upon the employer (Respondent) to prove that the Applicant was dismissed for one of the fair reasons of termination of a contract of employment stated in section 36 of the Employment Act. This proposition is in terms of section 42(2) of the Employment Act,1980 which provision, for purposes of the nature of this award- i.e.an ex-parte award, I consider it to be important to be quoted verbatim for the avoidance of any doubt:

“42(2)The services of an employee shall not be considered as having been fairly terminated unless the employer proves-

(a) That the reason for the termination was one permitted by section 36 ; and

(b) That, taking into account all the circumstances of the case, it was reasonable to terminate the services of the employee”(my emphasis).

1.3 It is trite law that burdens of proof are discharged through the evidence led and, in civil suits, the standard of proof is on a balance of probabilities. It was therefore incumbent upon the Respondent to adduce probable evidence in proof of its cause that the applicant’s dismissal was fair both in terms of substance and procedure and in the whole circumstances of the case. The opening statements cannot stand in the place of evidence which is given under oath and is subject to testing or scrutiny by the other side through cross-examination.

1.4 The fact of dismissal is common cause. The Applicant disputes the fairness of the dismissal. He has led evidence in support of why he complains that the dismissal was both substantively and procedurally unfair. I am inclined to find that his arguments in disputing the substantive and procedural fairness of the dismissal are sensible as they are not just bold and unsubstantiated allegations of unfairness. They are supported by evidence.

1.5 The Applicant’s case surely warranted to be tested against the employer’s evidence and arguments in proof of the fairness of the dismissal. In the absence of any such evidence from the Respondent, the Applicant’s case remains completely uncontroverted whatsoever and should therefore stand.

1.6 In terms of section 42(2) of the employment Act, the Applicant does not have to prove the alleged unfairness of the dismissal. He simply had to make up a case against the Respondent regarding the unfairness of the dismissal. That case has been clearly made in this matter. After a prima facie case had been made by the Applicant, it was then upon the Respondent to adduce evidence proving that the dismissal was, both in fact and in law, fair. Such evidence has not been adduced at all, which leaves the Applicant’s case uncontroverted.

1.7 Section 42(2) of the Employment Act is compatible with Convention 158 of the International LabourOrganization (ILO)Conventions which requires, inter alia, that:

1.7.1 The employment of a worker should not be terminated without valid reason (Article 4).

1.7.2 The burden of proving the existence of a valid reason rests on the employer (Article 9).

See: ILO Convention 158 (Termination of Employment Convention, 1982)

1.8 The provisions of section 42(2) of the Employment Act have been strictly and consistently followed without derogations even in ex parte or unopposed actions at the Industrial Court of Swaziland. In a host of ex parte trials, the Court has consistently held that by its default, the Respondent has failed to discharge the statutory onus resting on it in terms of section 42(2) and consequently found in favour of the Applicants (quote not verbatim).

1.9 I am accordingly also going to find that by its default, the Respondent has failed to discharge the onus resting upon it, of proving the fairness of the Applicant’s dismissal.

1.10 The Applicant claimed re-instatement. In terms of Section 16(1)(a) of the Industrial Relations Act,2000 (as amended) re-instatement is a primary remedy if a finding has been made that an employee’s dismissal was unfair. Nothing has been shown to prove that such an order may not be possible of being implemented. The Applicant believes that the parties’ relationship has not been permanently damaged by this dispute. The parties had been together for about 9 years in lieu of this dispute, a relatively lengthy period. This period had not been characterized by any of such rough encounters of disciplinary enquiries. It should therefore be possible for the parties to bury the past and expect the breaking of a new dawn.

1.11 The Applicant’s claim for 18 days leave dues has not been proven through evidence and will therefore not be granted. The onus of proving this claim was upon the Applicant through evidence. This claim was only raised by the Applicant’s representative during closing submissions but was not covered during the evidence stage. It should therefore fail for lack of proof.

2 AWARD

The Applicant’s dismissal is declared both substantively and procedurally unfair.

1.1 In Dumsani Lushaba v JD Group (Pty) LTD ( IC Case no: 210/04), the court observed that it was within the employer’s prerogative to restructure its establishment and to determine the size and character of its workforce in the manner most suitable for its requirements.

1.2 The Dumsani Lushaba case concerned the restructuring of operations of the JD Group business, following the integration of employees from another company, whose business had been taken over by the group. One of the issues to be resolved was the duplication of the position of Regional Manager as both companies had Regional Managers.

1.3 In the Lushaba case, the employer used the last in first out as a selection criteria for declaring one employee redundant. The court held that the employer’s decision was reasonable made in good faith and had a clear commercial rationale.

1.4 The facts of the Lushaba case are distinguishable from this matter; Besides the nature of the Applicant’s duties, no evidence was produced by the Respondent to prove what position Applicant was appointed to in the 4th May 2008. The Applicant stated that in the job interview, she submitted her AAT certificate as her academic qualification. The Report of Dispute is recorded that her capacity was Accountant, but this contradicted by her own evidence during arbitration. No letter of appointment or written particulars of employment were produced to prove her job title. Indeed Mahle Sukati asserted that Mr. Muller said she should give the Applicant work, without informing the former what the Applicant’s position was.

1.5 In terms of Section 22 (1) of the Employment Act, every employer shall within two (2) months of engagement give each employee a completed copy of her written particulars of employment. The written particulars of employment include a short description of the employee’s work.

1.6 In the case of Patrick Masondo v Emalangeni Foods (IC Case no: 45/04), at para 24 the Judge President made the following observation;

“The purpose of the Section 22 Form is to record the essential terms of employment and thereby avoid subsequent disputes such as that which has arisen in this case. The form constitutes prima facieevidence of the matters contained therein. The primary obligation to ensure compliance with Section 22 rest on the employer, to the extent that non-compliance constitutes a criminal offence on the part of the employer”.

1.7 The law requires the employer to consider ways to avoid and minimize retrenchment before the employee’s services are terminated. Ms. Tanya Stanley’s evidence is therefore of no relevance to the point in issue. See Cheadle: Retrenchment: The New Guidelines (1985) 6 ILJ 127; PHYLLIS PHUMZILE NTSHALINTSHALI v SEDCO (IC CASE NO 88/2004); DUMSANI LUSHABA v JD GROUP (PTY) LTD (IC CASE NO: 210/2004).

“I proceed to ascertain the common intention of the parties from the language used in the instrument. Various canons of construction are available to ascertain their common intention at the time of concluding the cession. According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.”

5.3 The learned CP Joubert JA in the Cooper case continued to propound as follows:

“The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself…The correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard: 1 to the context in which the word or phrase is used with its interpretation to the contract as a whole, including the nature and purpose of the contract, as stated by RUMPFF CJ supra: 2 to the background circumstances which explains the genesis and purpose of the contract i.e. to matters probably present to the minds of the parties when they contracted”.

5.4 The Cooper case was cited with approval by the Industrial Court of Swaziland in Stuart Banks v Imphilo Clinic (Pty) Ltd and Others (IC Case no: 528/07). I will refer to the facts of that case later in the award because of its import to the facts of this matter.

“In reading a document like this, we are justified in looking at the circumstances under which the guarantee was given, and the position of the various parties concerned. That is necessary in order to enable us rightly to understand and to place ourselves in the position of the parties at the time. But, having done that, I do not think we should gather from the circumstances what the parties meant, or what it (sic) is fair and equitable to think they meant, and then see whether we can ingeniously so read the document as to deduce that meaning from its language. The right method is first to have regard to the words of the document, and if they are definite and clear we must give effect to them. In every case where a document has to be construed so as to arrive at the intention of the parties, if a meaning is apparent upon the face of the document, that is the meaning which should be given to it….”

“What is clear, however, is that where sufficient certainty as to the meaning of a contract can be gathered from the language alone it is impermissible to reach a different result by drawing inferences from the surrounding circumstances…The underlying reason for this approach is that where words in a contract, agreed upon by the parties thereto, and therefore common to them, speak with sufficient clarity, they must be taken as expressing their common intention….”See OK Bazaars 1929 Ltd v Grosvenor Buildings Pty Ltd and Another 1993 (3) SA 471 (A).

5.7 The dispute between the parties is simply this; the Applicant submits as follows; “because of the terms and conditions of our agreement, I am owed 20% commission / profit share for the sales I made in January and April 2010 respectively.” The Respondent’s response is: “I do not think so”.

5.8 The agreement is titled ‘Machine Sales Contract Commission Based’. On page two of the agreement, clause one is subtitled ‘ Commission / Profit share’ and it provides as follows;

“1. To cover your basic costs plus as per the above, you will be expected to achieve a minimum monthly gross profit of E38 000.00.

2. Any additional profit will be calculated and paid at a rate of 30% or at a reduced rate, depending on the percentage of gross profit achieved, as per the table on page three.

3. Your sales target will be E90 000.00 per month for the first two months after which it will be increased to E120000.00 per month. Monthly sales of E120000.00 (done at 55%markup) will result in approximately E.14000.00 commission.”

5.9 Clause 2 is subtitled ‘Conditions’. It provides thus;

“1. Any profit will be calculated at 30% from ‘base’, and paid accordingly. (Gross profit is defined as the selling price less the base price at the factors provided by the contracts controller) In order for the above to be met, the gross profit on any particular transaction needs to exceed 30%, failing which a reduced rate will be applicable. (Refer to major accounts).

2. You will be required to achieve at least 80% of your target (excluding the first month of employment), constantly failing which you will be required to leave the company.

3. Profit share will only be payable once the company has received full payment for goods supplied.

4. The contract is reviewable after three months, where it will be decided if you qualify to be with the Gestetner family.”

5.10 Clause 5 subtitled ‘Major accounts transactions’, provides as follows and has the following table;

“In cases where the gross profit on a particular transaction drops below 30%, the company reserves the right to reduce the profit rate as per the following scale;

Gross Profit %

=Mark up

Rate

25% - 29%

34% - 43%

30%

20% - 24%

25%- 34%

25%

12% - 19%

14% - 25%

20%

Below 20%

Box Commission

5.11 The relevant portion of Clause 8 which is subtitled ‘General’ provides this;

“1. Machines may be sold on a cash, rental or copy service plan basis only. No credit terms are available unless prior arrangements have been made with your responsible manager.”

5.12 It is common cause that the Applicant failed to meet the sales target set out in clause one paragraph three, consequently the parties mutually agreed to terminate the contract in terms of clause two paragraph two.

5.13 It is my finding that the literal meaning of clauses one, two and five read together with the other clauses of the contract is that the common intention of the parties was that, the Applicant would only share the profits of the sales he made. This commission was meant to be an incentive for the Applicant to meet his target.

5.14 The agreement defines ‘gross profit’ as the difference between the selling price and base price. Now in the Stuart Banks case (supra), the learned Dunseith J.P. was faced with a dispute requiring the interpretation of a contract, more specifically the meaning of profit. The dispute between the parties in that case was, whether the agreed profit share (10%) meant operating profit or capital profit or both.

In the Stuart Banks case at page 7 para 13 the court made the following remarks after a review of the case law on interpretation of contracts (documents);

“The ordinary grammatical meaning of the word profit is “financial gain; excess of returns over outlay”- (The Concise Oxford Dictionary (9th ED). However in the commercial world the profit of a company may be of two kinds. First there is a profit arising out of the business operations of the company, representing the credit balance on the revenue account after deductions expenditure from income. This kind of profit is commonly referred to as trading or operating profit. Secondly there is the profit realised by dealing with the fixed capital and forming an accretion to capital, as, for instance, when assets of the company are sold for an amount in excess of their value as reflected in the company account. This kind of profit is commonly referred to as profit of a capital nature. See Halsburg’s Laws of England (4th ED) Volume 7 para.604.”

5.17 Profit means excess revenue over expenditures in a business transaction. Gross profit means total sales revenue less the costs of the goods sold, no adjustment being made for additional expenses and taxes. Net profit is the total sales revenue less the cost of the goods sold and all additional expenses. See Black’s Law Dictionary (8th Ed).

5.18 The markup or profit margin is the difference between the cost of something and the price for which it is sold. The ratio, expressed as a percentage, between this difference and the selling price. For example, a copier costing a retailer E2000.00 and sold for E2500.00 has a profit margin of 20% (E500.00 difference divided by E2500.00 selling price multiplied by 100). See Black’s Law Dictionary (8th Ed).

5.19 Regarding the first transaction, the Applicant attempted to dispute the fact that the Respondent made a loss on the sale of the second-hand multi-functional machine. According to the Applicant, the Respondent made a profit when she sold the machine for E18 789.00. This was because the copier had depreciated in value owing to the fact that certain components had broken down and it had been lying idle in the Respondent’s showroom.

5.20 However the Applicant did not produce any evidence to gainsay the Respondent’s version that the machine cost her 38 000.00. No evidence of depreciation was adduced. The Respondent demonstrated au fait with her products. She had a good understanding of her machines and the Applicant could not dispute such knowledge. Moreover the Respondent argued that the components were designed to have a limited lifespan.

5.21 I find that the Respondent did make a financial loss in the sale of the DSM622MFP, the machine having cost her E38 000.00 and having been sold for E18 789.00.

5.22 Ordinary loss is defined as a loss incurred from the sale or exchange of an item that is used in a trade or business. Net loss means the excess of all expenses and losses over all revenues and gains. See Black’s Law Dictionary (8th Ed).

74. BHEKI THWALAvs LEWIS STORES CMAC REF NO: STK 159/06

GROSS DISHONESTY; GROSS NEGLIGENCE; DISCIPLINARY HEARING

6.1.1 John Grogan, Dismissal Jutta and Co Ltd, p 116, states that dishonesty is a generic term embracing all forms of conduct involving deception on the part of an employee. The dishonest conduct need not constitute a criminal offence. It can entail an act or omission which an employer is morally entitled to expect an employee to do or not to do. A charge of dishonesty requires proof that the person acted with intent to deceive.

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case of defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradictions and defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterward argue that he must be disbelieved”. (Emphasis added).

GROSS NEGLIGENCE

John Grogan Supra at p122, remarks that, the requirements for dismissal for negligence are; that the employee failed to exercise the standard of care and skill that is reasonably required; that lack of care or skill resulted or could have resulted in loss to the employer; that the negligent act or omission could have resulted or resulted in loss to the employer, and the negligence must be gross.

As per The Central Bank of Swaziland v Memory Matiwane ( ICA case no: 110/93) and Swaziland United Bakeries v Armstrong Simelane (ICA case no: 117/94), in any matters before the Industrial Court and by an extension arbitration, the case has to be heard de novo. I have to consider the evidence led at the disciplinary hearing as well as that led before the arbitration.

In the following cases, it has been held that dishonesty is a very serious misconduct that destroys the employment relationship. As such an employee’s length of service and clean disciplinary record cannot override the gravity of the dishonesty committed;

In Mshayeli Sibiya v Cargo Carries (IC case no: 282/03) the court remarked that the employer should afford the employee an opportunity to challenge adverse evidence.

In Nkosinathi Ndzimandze & another v Ubombo Sugar Limited (IC case no: 476/05), the court observed that, even in circumstances where management is convinced of the guilt of an employee, it is still obliged to ensure that fair disciplinary process is observed.

John Grogan, Dismissal Jutta and Co Ltd, p 107remarks that abscondment is deemed to have occurred when the employee is absent from work for a time that warrants the inference that the employee does not intend to return to work.

“Absenteeism differs from absconding or, as it is more often described, desertion from work. Absenteeism is merely an unexplained and unauthorized absence from work, whereas desertion means an unauthorized absence with the intention never to return. Both absenteeism and desertion are breaches of the contract of employment, but desertion is repudiation of the contract. In other words, the employee’s desertion manifests his intention no longer to be bound by his contract of employment”. (Emphasis added).

The Judge President PR Dunseith in Alpheus Thobela Dlamini (supra) at 10-11, proceeds to remark as follows;

“Whether or not absenteeism amounts to desertion is a matter of fact, the critical question being whether the employee has absented himself with the intention never to return. His intention must be determined from all the circumstances. The test is objective and is the same on that which applies to all alleged repudiation of a contract, namely does the conduct of the employee, fairly interpreted exhibit a deliberate and unequivocal intention no longer to be bound by the employment contract”. (Emphasis added).

However the authenticity of the Child’s Health Card was not in issue. Even assuming it was in issue, the Industrial Court in Jabulani Simelanev Cudbury Swaziland (Pty) Ltd (IC Case No: 261/99); held that the onus of proving that hospital documents are false lies with the employer.

The chairperson quoted from Derek Jackson’s comment sourced from www. Labourguide.co.za/ going on maternity leave. According to Derek Jackson, It is every employee’s duty to inform her employer timeously about her pregnancy and particularly when she will want to go on maternity leave.

John Grogan, Workplace Law (8th ed) Jutta & Co Ltd , p 174, remarks that an obligation rests on the employee to notify her employer in writing, if she can write, of the date on which she intends to start maternity leave and this is in terms of Section 25 of the Basic Conditions of the Employment Act of 1983.

While the Swaziland Employment Act does require an employee to produce a certificate by a medical practitioner or a midwife setting forth the expected or actual date of confinement, before she can be entitled to maternity leave, she however does not commit an offence if she proceeds on maternity without having first delivered the certificate .See Section 103(3) (Supra).

The case law that was cited by the Respondent‘s counsel in his closing submission are distinguishable because they deal with absenteeism in general. None of the cases referred to are in point (dismissal on the grounds of absenteeism because of pregnancy or maternity leave).

In terms of Section 4 (1) (a) and (j) of the Industrial Relations Act 2000 (as amended), the purpose and objective of the Act is to promote fairness and equity in labour relations, and also ensure adherence to international labour standards.

Now, the question of the application of Conventions and Recommendations of the International Labour Organisation was considered by the Industrial Court of Appeal in ZodwaKingsley and 10 others v Swaziland Industrial DevelopmentCompany Limited (ICA Case No: 11/2003).

In the Zodwa Kingsley case (supra) the court referred with approval to the article by Sifiso S. Dlamini;

Swaziland’s New Industrial Relations Act 2000: A Legal Response, 2000 ILJ 2174 at 2176. Per EBERSOHN JA at 4-5, the court made the following statement;

“Sifiso S. Dlamini in a very thorough and comprehensive article argued that when the Kingdom of Swaziland adopted the Labour Relations Act 2000 (Act 1 of 2000) (sic), is in effect incorporated the Conventions and Recommendations of the International Labour Organisation into the law of Swaziland. I am of the opinion that the learned author is correct. In so far as it may be argued that the Labour Relations Act of 2000 (sic) did not incorporate the Conventions and Recommendations of the International Labour Organisation and as it is necessary to remove any doubt about it, this Court after due consideration, hereby finds and confirms that the Conventions and Recommendations of the International Labour Organisation apply in the Kingdom of Swaziland and must be adhered to and be applied in conjuction with the labour legislation of Swaziland”. (Emphasis added).

Articles 8(1) of the International Labour Organisation’s

Convention 183, the Maternity Protection of 2000, provides that;

“It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national law or regulation, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reason for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer”. (Emphasis added).

Articles 8(2) of Convention 183,2000 reads;

“A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of the maternity leave”.

According to Section 2 of the Industrial Relations Act, if the

reason for the dismissal of an employee is because of the employee’s pregnancy, intended pregnancy, orany reason related to her pregnancy, such dismissal shall be deemed to be automatically unfair.

Section 32(3) of the Constitution of the Kingdom of Swaziland

Act, 2005 provides that;

“The employer of a female worker shall accord that

worker protection before and after child birth in

accordance with the law”.

John Grogan(supra) at 74remarks that whether the reason for

the dismissal is in fact related to the employee’s pregnancy is a question of fact or, where the employer claims that other reasons were more pressing, is a question of legal causation.

In essence the Industrial Relations Act provides that, where an employer terminates the services of an employee because she went on maternity leave without its permission, that dismissal shall be deemed automatically unfair. However this is not an issue I have to decide.

Accordingly I find that the Applicant’s dismissal was substantively unfair.

However I find that the dismissal was procedurally fair. The Applicant alleged that she noted an appeal against her dismissal, but she did not state when and to whom was the letter of appeal submitted at the Respondent’s premises. She did not even produce a copy of the letter of Appeal together with such proof of service.

The Applicant seeks reinstatement as her preferred relief. In terms of Section 16 (2) of the Industrial Relations Act, the Courts and by extension, the Arbitrator shall require the employer to reinstate the employee unless; the employee does not wish to be reinstated; the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; it is not reasonably practicable for the employer to reinstate the employee or the dismissal is unfair only because the employer did not follow a fair procedure. The Industrial Court in the case of Constance Simelane v SwazilandElectricity Board (IC Case No: 273/2003) applied Section 16(2) (supra).

The following facts favour an award of reinstatement;

(a) the Applicant wishes to be reinstated;

(b) the Respondent’s reason for dismissing the Applicant does not involve any dishonesty on her part. In the circumstances the trust between the Respondent and the Applicant has not been broken;

(c) the Respondent did not submit that it would not be reasonably practicable to reinstate the Applicant;

(d) despite the lapse of seventeen (17) months after the Applicant was dismissed, the nature of her job and the skill required to perform it would not entail any hardship in adjusting thereto;

(e) the Applicant’s dismissal was not for a fair reason and in all the circumstances of the case unreasonable.

Section 16(1) (a) of the Industrial Relations Act reads;

“if the Court finds a dismissal is unfair, the Court may-order the employer to reinstate the employee from any date nor earlier than the date of dismissal”.

In the Swaziland Electricity Board v Collie Dlamini (ICA Case No: 2 / 2007), the Industrial Court of Appeal per Mamba JA in reference to Section 16(1)(a), made the following statement of law;

“…The Section empowers the Court to order an employer to reinstate the employee from any date not earlier than the date of dismissal. It could even conceivably be in future, that is to say after judgment. The Court has discretion on the issue”.

I hold that an order directing the Respondent to re-instate the

Applicant in the position that she previously held, and with a pay rate not less than that at which she was previously paid, would be fair and equitable having regard to all the circumstances of the case.

“If an employee wilfully damages the property of the employer, dismissal is almost invariably justified. The justification in such cases flows more from the employee’s malicious intent than from the actual damage caused; where intent is present, dismissal is warranted even if the employer suffered only minor loss. "

In view of the fact that Grogan’s (supra) exposition of wilful damage to property is brief and to the point, and because there are no reported cases in the Industrial Court and the Industrial Court of Appeal dealing with the specific misconduct, it is necessary to refer to criminal law text books. This is because these text books deal extensively with the criminal offence of malicious damage to property.

5.5. It is my holding, that save for the different standards of proof required, the elements of the offence of malicious or wilful damage to property in criminal and civil law (labour) are similar. CR SNYMAN CRIMINAL LAW (3RD ed) Butterworths (1995) p 502, defines malicious injury to property as follows;

“A person commits malicious injury to property if he unlawfully and intentionally damages

(a) Movable or immovable property belonging to another, or

(b) His own insured property, intending to claim the value of the property from the insurer.”

According to the Concise Oxford English Dictionary(11th Ed) (2004), the words wilful, malicious and intention are synonymous.

Snyman (supra) at p 505 remarks that it is irrelevant that the perpetrator had an improper or ulterior motive for one to prove his intent. Damaging the property need not be an offender’s principal aim. It suffices if he foresees the possibility that the damage may be caused, but nonetheless proceeds with his actions.

One needs to caution himself and apply the principle enunciated in Zephania Ngwenya v Royal Swaziland Sugar Corporation (IC Case no: 262/2001); Christopher H. Dlamini v Inter Africa Suppliers (SWD) LTD (IC Case no: 55/97), that, in holding a disciplinary inquiry, an employer is not expected to observe the same standards that apply in criminal proceeding in Courts of Law. Although the Respondent did not produce a charge sheet, minutes and a written verdict, the proven facts are that the Applicant was afforded an opportunity to defend himself against the accusation of willfully damaging the truck’s engine. The disciplinary inquiry was held over a period of at least three weeks. I find that the Applicant’s dismissal was procedurally fair.

According to the case of France Dlamini v A to Zee (IC Case No. 86/2002), Nderi Nduma JP (as he then was), held that where an employer fails to maintain such a record (of the statutory employment form),; and there is a dispute as to the terms and conditions of service of the employee, the onus then shifts to the employer to rebut the terms of employment asserted by the employee. This case was cited with approval by P. Dunseith JP

None of the Respondent’s witnesses, or any of the evidence adduced, in my opinion sufficiently manages to gainsay the Applicant’s assertion that she was permanently employed. The evidence of Mr. Sonnyboy Dlamini was only valuable in showing that in some months Ms Khulile Maseko’s name was not reflected in the bank statements. Ms Maseko had already said in her evidence in chief that she was at times paid in cash, and Mr. Dlamini also buttressed this version when he said that Mr. Waligo had told him that the amounts that were missing from the accounts were in fact Ms Maseko’s salary which had been paid to her in cash.

Even though the Respondent’s representative had stated that the Applicant’s version should not be believed because she could not produce her contract of employment, or a copy thereof to substantiate an allegation of permanent employment. It is trite law that a contract between parties need not always be written. Our law does recognize the existence of a verbal agreement, which is no less valid than the written one (see J. Grogan, “Workplace Law”, 10th Edition, pg 16).

The law is clear that the classification of contracts of employment is a matter of substance, and not merely of form. The deciding factor on the nature of an agreement between parties is to be determined from the relationship between them. In this case it is evident from the evidence of all the witnesses that Ms Maseko was employed by the Respondent, and the Respondent has not been able to show that such employment was based on a fixed-term agreement which had elapsed. The only logical conclusion that may drawn, in view of the negative inference of the employers’ failure to produce a record of Form 22 on the terms and conditions of service of the Applicant, is that Ms Maseko was a permanent employee of the Respondent. This being the case she was fully entitled to the protection afforded by Section 35 of the Employment Act.

78. BETHUSILE DLAMINI vs THABSILE NKAMBULE SWMB 170/10

FICTIONAL FULFILMENT; CONTRACT OF EMPLOYMENT

a. I am inclined to apply the doctrine of fictional fulfillment which applies, where a party seeks to terminate the contract on the ground of his or her own inability to perform. This position was pointed out in,Orda AG v Nuclear Fuels Corporation of South Africa (Pty) Ltd 1994(4) SA 26(W) which case was cited with authority in Diamond Core Resources(pty) ltd v River corporate finance(pty) ltd (642/2009) [2009] ZANCHC 78 wherethe Head Note at 29G-H captures the principle relating to the impossibility defence in these terms:

“Although the general rule was that, if performance was impossible through no fault of the debtor (the Respondent in the present case)

the debtor's obligations under the contract were extinguished, whether this would in fact be the effect would depend upon the nature of the contract, the relationship between the parties, thecircumstances of the case and the cause of the impossibility. (At 82J-83A.) If the causes of the impossibility were in the contemplation of the parties, they were in general bound by the contract; if, however, the causes were such that no human insight could have foreseen them, then their obligations under the contract were extinguished. (At 83B.)

b. I am therefore inclined to state that in the present matter the parties remain bound by the contract. The resignation of the Applicant does not alter the material terms that bind the parties. The Respondent remains indebted to the Applicant for the amount paid to the stokvel, because this amount was deducted from the Applicant’s wages and the Applicant remains entitled to same on termination of the contract of employment.

In Andre Van Niekerk: Unfair Dismissal, (2002) Siber Ink at page 39, Van Niekerk A. argues that: “Dessertion is distinguishable from absence without leave in that, in the former instance, the employer’s conduct indicates or gives the employer reason to believe that the employee has no intention of returning to work. Unless employees who have deserted or absconded are able to produce compelling reasons for their conduct would normally justify dismissal”.

the main obligation of employees under the contract of employment is to place their personal service at the disposal of their employer. The tender of service is a prerequisite to the employee’s right to claim payment of wages”…… “failure to render service may take many forms, ranging from desertion through absenteeism to unpunctuality”….. “that whether absence from work justifies termination of the contract depends on the facts of each case”. “that in Myers v Sieradzki it was held that the period of absence that constitutes a legitimate ground for summary dismissal depends on the facts of each case. In Strachan v Prinsloo the Court ruled that the essential issue was whether or not the employees conduct amounted to a breach of a vital term of the contract of employment, whether express or implied”…. “that greater latitude must be allowed when the absence is due to circumstances beyond the control of the employees”.

Grogan J goes on to argue that: “In dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed, and on the employer to show that the dismissal was fair. Proof that a dismissal took place requires employees to prove on a balance of probabilities that they were employees as defined at the time of the termination of the employment relationship”…….“the primary significance of the onus is that when the evidence on a point is evenly balanced or indecisive, the balance will tip against the party upon whom the onus rests. However, subject to the overall onus, the burden of proving particular points may shift to the party not bearing the onus, on the basis of the principle that he who asserts must prove”. “If the employee fails to discharge the evidentiary burden on a particular point, it may be that the employer will be held to have discharged its overall onus”.

Having asserted that he was an employee who must be protected by Section 35 of the Employment Act (1980) as amended, Applicant then submitted that his services were unilaterally and verbally terminated by Respondent on the 30th May, 2007. Again as argued by Grogan J,

“In dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed, and on the employer to show that the dismissal was fair. Proof that a dismissal took place requires employees to prove on a balance of probabilities that they were employees as defined at the time of the termination of the employment relationship”.

The consequence of this omission by Applicant is that his version of events is subject to being challenged. As was noted by Grogan J,

“The primary significance of the onus is that when the evidence on a point is evenly balanced or indecisive, the balance will tip against the party upon whom the onus rests.

The facts of this case are such that it is very hard to take Applicants version as coherent and plausible. Thus as noted by Van Niekerk A,

“….the employer’s conduct indicates or gives the employer reason to believe that the employee has no intention of returning to work. Unless employees who have deserted or absconded are able to produce compelling reasons for their conduct, their conduct would normally justify dismissal”

81. PETROS MAVIMBELA VS MASTER GARMENT –CMAC Ref: MNZ 028/08

Mhlanga R.S. – Arb

Now turning to the issues to be decided herein, it was stated by the Judge President, PR Dunseith in the very same case of Petros Mavimbela vs Master Garments, Industrial Court Case No. 91/08 at page 4, in his ruling on the application for referral to arbitration in terms of Section 85 (2) of the Industrial Relations Act 2000 (as amended) that ‘it appears that there are only two material questions that arise for decision- was the Applicant genuinely redundant, and was the properly consulted before his retrenchment”.

In casu, the first question to be dealt with, is whether or not the Applicant’s retrenchment was procedurally fair. In terms of our labour laws, a retrenchment or dismissal based on operational requirements is governed by section 40 (2) of the Employment Act 1980 (as amended), where an employer contemplates the termination of the contracts of employment of five (5) or more employees for reasons of redundancy. However, the Industrial Court in the following cases of: Thabo Simelane vs JD Group (Swaziland), Industrial Court Case No. 166/02 and Lonhlanhla Masuku vs KK Investments (Pty) Ltd – IC Case No. 341/03, endorsed a legal requirement to the effect that an employer is legally obliged to notify and or consult with an individual employee who is affected or likely to be affected by a contemplated retrenchment. The Court in the aforemention case of Thabo Simelane vs JD Group (Swaziland) (Pty) Ltd, Case No. 166/02, at pages 5 stated (with regard to Section 40 (2) that; “That section however is couched in general terms. There are issues that will necessarily require consultation with the individual employee, which if not done, the employee will be prejudiced”. The Court in the other case of Lonhlanhla Masuku v KK Investments (Pty) Ltd, Case No. 341/03 at page 11 said that; “The Court is also of the view that the Respondent had a duty to notify the Applicant in advance that it was contemplating retrenchment and her job might be affected…” The Court further stated; “There was a duty on the Respondent to consult with the Applicant individually, particularly because it adopted an individual approach to the selection of the Applicant for redundancy”.

In Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union & Others (1999) 20 ILJ 89 (LAC), the Labour Appeal Court of South Africa on the question of retrenchment stated as follows: “The employer must initiate the consultation process when it contemplates dismissal for operational reasons”. It must disclose the relevant information to the other consulting party; it must allow the other consulting party an opportunity during consultation to make representations about any matter on which they are consulting; it must consider these representations and, if it does not agree with them, it must give reasons”. The above quoted excerpt of the case was sourced from John Grogan, Workplace Law, Eight Edition, at page 224.

I now turn to the second question namely; whether or not the Applicant was genuinely redundant. Put differently, the issue to be determined is whether or not the Applicant’s dismissal or retrenchment was substantively fair. In this regard I have to decide whether a valid or bonafide and fair reason existed which justified the termination of the Applicant’s job on the ground of redundancy. John Grogan Workplace Law, Eight Edition at page 224 states: “The test for substantive fairness in dismissals for operational requirements remains whether the dismissals were operationally rational”. John Grogan further states: “In Kotze v Rebel Liquor Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 at page 33, the Labour Appeal Court stressed that its function is not second-guess the commercial and business efficacy of the employer’s ultimate decision, but to pass judgment on whether such a decisionwas genuine and not merely a sham; A decision to retrench could be exposed as a sham if, for example the dismissed employee is immediately replaced with another in the same position”.

In the case of Zodwa Kingsley & 10 Others v Swaziland Industrial Development Company Limited, Appeal Case No. 11/03 “The test thus prescribed is that the Court, when considering the matter, must assess the evidence and make a finding whether the employee infact was redundant or not”.

John Grogan, Workplace Law 8th ed Juta & Co. at page 44 remarks as follows about fixed term contracts:

“The life of a contract may be determined either by stipulating a date for termination, or by stipulating a particular event the occurrence of which will terminate the contract, or with reference to completion of a particular task. Where the parties have indicated that the contract will terminate on the occurrence of a particular event or the completion of a particular task, the onus rests on the employer to prove that the event has occurred or the task was in fact completed. Unless otherwise agreed, a fixed term contract cannot be terminated during its currency without good cause”.

“There is no doubt that at common law a party to a fixed term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words there is no right to terminate such contract even on notice unless its terms provide for such termination. The rationale for this is clear. When parties agree that their contract will endure for a certain period as opposed to a contract for an indefinite period, they bind themselves to honour and perform that respective obligations in terms of that contract for the duration of the contract and they plan, as they are entitled to in the light of their agreement, their lives on the basis that the obligations of the contract will be performed for the duration of that contract in the absence of a material breach of the contract. Each party is entitled to expect that the other has carefully looked into the future and has satisfied itself that it can meet its obligations for the entire term in the absence of any material breach…under the common law there is no right to terminate a fixed term contract of employment prematurely in the absence of a material breach of such contract by the other party.

The statement by the learned Jafta AJA was embraced by the Judge President of the Industrial Court of Swaziland in Boniface Dlamini v Swaziland United Bakeries (Pty) Ltd (IC Case No. 200/02). In the Boniface Dlamini case, the Court made the following remarks:

“The Labour Appeal Court in South Africa has held that an employer that retrenches an employee on a fixed term contract before the contract’s expiry date commits a breach of contract – see Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC). This decision is clearly correct….”

83. DUMISA NDLANGAMANDLA V SHOPRITE CHECKERS – CMAC Ref: SWMZ 223/09

In the case of Hollington v F. Hewthorn & Co. Ltd 1943 2 ALL ER 35 it was held quite authoritatively that the earlier criminal convictions of a party are inadmissible for purposes of subsequent civil proceedings. This decision is authority therefore that Mr. Ndlangamandla’s disciplinary hearing was certainly not the “second stage” of the earlier criminal case which is decided at the Swazi National Court. In fact, the mere mention of that case at the disciplinary hearing gave rise to a suspicion that the chairperson was influenced by the findings of that other forum, which thing is frowned upon by the law. This is because this raises the suspicion that the chairperson may have been influenced in his own findings by what was decided by the criminal court.

The Court in Graham Rudolph vs Mananga College and Another I.C. Case No. 94/2007 also emphasised the point that a chairperson should at all times be seen to befree from bias (see also SHCAWU v Protea Hotel – Piggs Peak I.C. Case No. 195/1999.)

Where an employee complains that the conduct of an employer towards her was such that, she could no longer be reasonably expected to continue in her employment and she consequently leaves her employment and invokes Section 37 of the Employment Act 1980, and therefore alleges constructive dismissal, the onus to prove that she was so dismissed rests with that employee.

See Timothy Mfanimpela Vilakazi v Anti-Corruption Commission & Others (I.C. Case No. 232/02); Simon Nhlabatsi v VIP Protection Services (I.C. Case No. 84/02).It was held in the Simon Hlabatsi case (SUPRA) that, whether an employee in the circumstances of the case has proved that she was constructively dismissed, is a question of fact to be determined by a judge.

One of the primary duties of an employer towards his employee is to provide her with reasonably safe and healthy working conditions. See John Grogan, Workplace Law (8th Ed).

The dismissal was not preceded by a disciplinary hearing. No charges were laid against him. It was the Applicant’s own assumption that the Respondent may have suspected him of conspiracy to commit fraud. The Respondent did not proffer that reason since she failed to appear at the arbitration. Without a proper explanation, failure by the Applicant to attend the disciplinary hearing at another distinct company (Spar) does note render him guilty of dishonesty.